In the original opinion the sentence of death was affirmed against the appellant for the murder of L. F. Threet. The conviction was had in the District Court of Eastland County. At the time of the trial of the present case the appellant was under conviction for the offense of robbery of Threet with firearms, he having been convicted in the District Court of Callahan County. He was condemned to suffer confinement in the penitentiary for 99 years. No appeal was taken by the appellant from the conviction of robbery with firearms. At the time of the trial in the present case he was serving the sentence for robbery with firearms.
The appellant's conviction for robbery with firearms is upon the same evidence, same facts and the same transaction as the conviction from which the present appeal is perfected. In the record of this appeal there is a written agreement, sanctioned by the judge presiding, in which it is agreed that the testimony which was given against the appellant on his trial in Callahan County, in which he was convicted for robbery with firearms, is identical with that adduced against him upon the trial from which the present appeal proceeds. The evidence is set out in detail in the original opinion and is, in substance, that the appellant and one Van Cleve went to the ranch where Threet and a companion were present; that in effecting the robbery Threet made some resistance and was shot and wounded by the appellant, who took from Threet the money which he had upon his person; that some days thereafter Threet died from the effect of the wounds inflicted by appellant at the time of the robbery.
From the written agreement mentioned, we take the following quotation:
"It is further agreed that the indictment herein grew out of the alleged shooting of the deceased L. F. Threet on August 15, 1934, at the time and at the scene of the robbery of said L. F. Threet, deceased, for which this same defendant was tried and convicted in said cause No. 3312 in the District Court of Callahan County, Texas, and at no other shooting of the said L. F. Threet."
On the trial herein the appellant filed a plea of former jeopardy, and invoked Art. 1, sec. 14, of the Constitution of Texas, which reads as follows:
"No person, for the same offense, shall be twice put in jeopardy of life or liberty, nor shall a person be again put on *Page 218 trial for the same offense after a verdict of not guilty in a court of competent jurisdiction."
There is a marked distinction between a plea of former conviction and a plea of former acquittal. In a plea of former acquittal, the State may, under certain circumstances, try the accused again upon substantially the same evidence as that previously used. Against a subsequent trial for his life or liberty, when it appears as in the present instance, that the State, for the second conviction of the appellant relies upon the same evidence upon which it had previously convicted him in the first trial, the conviction cannot stand.
In 12 Texas Jur., p. 557, sec. 239, it is said:
"The plea of autrefois convict only requires that the transaction, or the facts constituting it, be the same."
Many cases are cited in support of the foregoing rule. A recent example of the application of the rule is shown in the reversal of the judgment of conviction in the case of Whitten v. State, 94 Crim. Rep., p. 144, in which it was said:
"The State, having carved out of this transaction the offense of the unlawful sale of the liquor and having secured a conviction for that offense, is precluded by that judgment from carving another offense out of the same transaction. This principle is stated by Presiding Judge White of this court in the case of Simco v. State, 9 Texas App., 338, and again in Wright's case, 17 Texas Crim. App., 158, with the utmost clearness. In the cases mentioned, the distinction between the plea of former acquittal and former conviction and the facts upon which they must each rest is thus stated:
" 'Autrefois acquit is only avaidable in cases where the transaction is the same and the two indictments are susceptible of, and must be sustained by, the same proof. These two elements must combine, and are both sine qua non to the sufficiency of the plea. Autrefois convict only requires that the transaction, or the facts constituting it, be the same.' "
The inhibition against double jeopardy is determined by the facts and circumstances and not by the name of the offense. In Hirshfield v. State, 11 Texas App., 207, this court said:
"Is the name given to the act or acts which constitutes the offense to control when we are seeking to determine whether it be the same offense or not, or must we not look to the act or acts, or the omissions prohibited and punished by the Code, in order to determine this question? We must, in determining whether they were the same offense or not, look to the act, acts or omissions; for these and not the name by which they are *Page 219 called are denounced by the Code. We therefore conclude that a person shall not be twice put in jeopardy for the same act, acts, or omissions, which are forbidden by positive law, and to which is annexed, on conviction, any punishment prescribed in this Code."
A like interpretation of the meaning of the term "same offense" is found in the text and cases cited in 12 Texas Jur., p. 556, sec. 238, and in 8 R. C. L., p. 145, sec. 130. The subject is also treated in Bishop's Criminal Law (9th Ed.), Vol. 1, sec. 1051.
The facts shown by the record, in our opinion, portray a marked and definite illustration of the application of the principle that when one has been convicted, the State cannot, upon the same evidence, again convict him of the same act of which he has previously been convicted. In the present instance, the proof is conclusive that, in the appellant's conviction for murder, he was convicted of the same transaction and upon the same evidence as that upon which he was previously convicted of the offense of robbery with firearms.
The opinion of this court, written by Judge Henderson in the case of Herera v. State, 34 S.W. 943, is illustrative of the soundness of the contention made by the appellant in the present trial. From the opinion the following quotation is taken:
"Applying the test to ascertain whether or not the indictments are for the same offense, it will be seen that in the second case, charged against the appellant, to sustain the robbery it was necessary to prove the assault. Indeed, the robbery could not be sustained without proof of the same assault for which appellant had previously been convicted on a charge for assault with intent to murder. The offenses, in part, at least, are of a like character. They relate to one transaction. And, while the charge of robbery contains more of criminality than the other, yet upon the assaulting part of the charge, upon which the robbery only could be sustained (though embraced in it), the assault with intent to murder is predicated. The offenses, though bearing different names, would appear, by the rule laid down within our constitutional guaranty, the same."
The case of Moore v. State, 25 S.W. 1120, further illustrates the soundness of the appellant's contention. The conviction in that case was for assault with intent to murder. At a preceding day of the term Moore had been convicted of the offense of robbery from the same person. Upon the conviction *Page 220 last mentioned he predicated the plea of former jeopardy. In the course of the opinion it was said:
"It has been well said that 'the assault or violence in the robbery case being an essential element or ingredient of the offense, and constituting an important and material part of that offense, as it does in the offense of assault with intent to commit murder, and having been once punished in the robbery case, as a material part thereof, it cannot be again punished, as it would be if the judgment below were allowed to stand.' "
See also Taylor v. State, 55 S.W. 961.
The rule to which we have adverted is well settled, and not to apply it to the facts of the present case is to overrule the decisions to which reference has been made. We are aware of no valid reason for announcing a contrary doctrine. It follows that we are of opinion that we were in error in holding the plea of former jeopardy was not available.
Appellant's motion for rehearing is granted, the judgment of affirmance is set aside, and the judgment of the trial court is now reversed and the cause remanded.
Reversed and remanded.